Pankajkumar Sevantilal Parmar, Surat V. ITO, Ward 1(3)(4), Surat

ITA 212/SRT/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2443 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-02-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 15-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Unexplained cash credit; Set aside
• Section: 148; 144; 139; 142(1); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA Nos. 205,206, 212 to 214/SRT/2021 (AY 2010-11) (Hearing in Virtual Court) Pankajkumar Sevantilal Parmer, 3/34, Central Government Colony, Nr. Police Road, Athwalines, Surat- 395001 PAN : AFJPP 3249 J Vs Income Tax Officer, Ward-1(3)(4), Aaykar Bhavan, Majura Gate, Surat-395002 Applicant / assessee Respondent / Revenue Assessee by Shri P.M.Jagasheth, C.A Revenue by Ms. Anupama Singla, Sr-DR Date of hearing 28.02.2022 Date of pronouncement 28.02.2022 Order under section 254(1) of Income Tax Act PER BENCH: 1. These group of five appeals by single assessee are directed against the separate orders of ld. National Faceless Appeal Centre (‘NFAC’ for short) Delhi / Commissioner of Income tax (Appeals) dated 20.09.2021 all for assessment years (AY) 2010-11. ITA No.205/SRT/2021relates to quantum assessment; ITA Nos.206/SRT/2021, ITA No.212 & ITA No.213/SRT/2021 relate to penalty levied under section 271(1)(b) of the Act and ITA No.214/SRT/2021 relates to penalty levied under section 271F of the Act. In all appeals, facts are common, the Ld. NFAC/ CIT(A) passed ex parte order ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 2 dismissing the appeal in limine. Therefore, all appeals with the consent of parties, all are clubbed, heard and decided by a consolidate order. The assessee has raised the following grounds of appeal in ITA No.205/SRT/2021 as follows:- “1.On the facts and in the circumstances of the case as well as on the subject, the learned commissioner of the Income Tax (Appeals) has erred in confirming the action of the assessing officer in re-opening the assessment u/s 147 of the Income Tax Act, 1961 and issuing Notice u/s 148 of the Income Tax Act, 1961. 2. On the facts and circumstances of the case as well as law on the subject, the learned commissioner of the income Tax (Appeals) has erred in confirming the action of the assessing office in making addition of Rs.23,92,664/- on account of cash deposits as well as credit entries in Bank Account treated as alleged Unexplained credit entries.. 3. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has not provided the ample opportunities to hear the case and passed ex-parte order, hence the case may please be allowed and set aside to the CIT(A). 4. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 5. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal.” The assessee has raised following grounds of appeal in ITA No.206/SRT/2021:- ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 3 “1. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred in confirming the action of the assessing office in levying Penalty of Rs.10,000/- u/s 271(1)(b) of the Income Tax Act, 1961. 2.On the facts in the circumstances of the case as well as law on the subject, the learned commissioner of the income Tax (Appeals) has not provided the ample opportunities to her the case and passed ex-arte order, hence the case may please be allowed and set aside to the CIT(A). 3. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 2. Brief facts of the case are that case of assessee was reopened on the basis of AIR information that assessee made cash deposits of Rs.11,43,000/- in his savings bank account. Notice under section 148 of the Act dated 30.03.2017 was served upon the assessee. The Assessing Officer recorded that notice under section 148 was issued by way of affixtures at the address of assessee. No return of income was filed by assessee in response to notice under section 148. The Assessing Officer recorded that various notices under section 142(1) was issued. However, none of the notice was responded by assessee. Ultimately, on 31.08.2017 representative of assessee attended and filed acknowledgement of return of income filed on ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 4 29.08.2017. The reasons recorded were provided to assessee alongwith notice under section 143(2) fixing hearing on 15.09.2017.Thereafter none appeared on behalf of assessee. During the assessment, Assessing Officer issued notice under section 133(6), Bank of Baroda (‘BoB’ in short) seeking information about the bank statement, bank details & KYC etc. of assessee. In response to notice, the bank of BoB furnished statement of account. On perusal of said bank account, the Assessing Officer recorded that there was another cash credit of Rs.12,49664/- in the said account thereby totalling of Rs.23,92,664/-. Since the assessee failed to give any corroborative explanation, the Assessing Officer passed assessment order under section 144 r.w.s. 147 of the Act on 30.11.2017. 3. The Assessing Officer also levied penalty under section 271(1)(b) for three different defaults and penalty under section 271F of the Act for not filing return of income under section 139 of the Act. Aggrieved by the addition in the quantum assessment as well as against various penalties levied under section 271(1)(b) and in penalty under section ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 5 271F, the assessee filed separate appeals before Ld. CIT(A). All the appeals of assessee were transferred to the file of NFAC, Delhi in terms of notification No.76/2020 dated 25.09.2020. Before Ld. NFAC/ CIT(A) assessee challenged the validity of re- opening as well as addition of Rs.23,92,664/-. The Ld. NFAC/CIT(A) recorded that assessee was issued various notices wherein the assessee appeared and filed certain replies, the assessee was given final opportunity to make compliance on 15.09.2021. The Ld. NFAC/CIT(A) recorded that assessee has not made any compliance and that the assessee is a habit of seeking adjournment after adjournment and accordingly dismissing the appeals of assessee in limine. Similarly other appeals of assessee on various penalties were also dismissed by NFAC/CIT(A). Aggrieved by the orders of Ld. NFAC/CIT(A), the assessee has filed these present appeals before the Tribunal. 4. We have heard the submissions of the Ld. Authorized Representative, (AR) for assessee and the learned departmental representative (DR) for the revenue. The Ld. AR of the assessee submits that during the pendency of appeal ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 6 the assessee was asked to furnish his submission by 15.09.2021. The Ld. AR for the assessee submits that assessee furnished his submission on 15.09.2021 alongwith details of pass book. The Ld. AR of the assessee submits that Ld. NFAC/CIT(A) dismissing the appeals of assessee in limine and not considered the explanation and submission furnished by assessee, though NFAC/CIT(A) passed order on 20.09.2021. The assessee has already furnished his submission prior 15.09.2021. The Ld. AR of the assessee submits that e-filling processing response/ acknowledgement is placed on record. The e-proceeding response clearly shown the submission and the documents filed by assessee. 5. The Ld. AR for the assessee submits that bank account No.27380100018362 with BoB was opened by assessee only on 22.04.2013 and was in existence during AY 2010-11. The AR for the assessee submits that he has a good case on merit and is likely to succeed if one more opportunity is given to the assessee to represent his case. 6. In another appeal against various penalties. The Ld. AR of the assessee submits that even no penalty under any of the ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 7 provision is levieable against the assessee. The assessing officer levied three penalty within a span of very short period. The assessee would explain each and every fact, if he is given one more opportunity to explain the facts before the lower authorities. The Ld. AR of the assessee submit that he undertake on behalf of assessee to be more vigilant in future and not to take further adjournment without any valid reason. 7. On the other hand, Ld. Senior Departmental Representative (Sr.DR) for the Revenue submits that though the assessee was given sufficient opportunities and despite numerous opportunities assessee neither furnished details before Assessing Officer nor before Ld. NFAC/CIT(A). The Ld. Sr.DR for the Revenue submits that assessee deserves no more opportunity. 8. In alternative submission, Ld. Sr.DR of the Revenue submits that in case the Hon'ble Tribunal deem it fit and proper to grant further opportunity, the assessee may be directed to be more vigilant and not to waste precious time of lower authorities and to make proper compliance. ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 8 9. We have considered the rival submissions of both the parties and perused the material available on record. We find that in quantum assessment the Assessing Officer passed order under section 144 r.w.s. 147 by taking view that despite granting various opportunities, the assessee failed to make any compliance. The NFAC/Ld. CIT(A) also dismissed all the appeals of assessee in limine. We find that the date of hearing in quantum assessment was fixed on 15.09.2021.The assessee furnished his submission on the portal of e-proceedings, on 15.09.2021 itself, however, the Ld.NFAC/CIT(A) passed the order on 20.09.2021 and has not considered the submission of assessee. 10. Before us the Ld. AR of the assessee in his submission submits that the submissions of assessee is on the portal of e- Processing response, copy of which is filed on record, which clearly shows that account No. No.27380100018362 of BoB was opened by assessee on 22.04.2013 and that the bank account was not in existence in AY 2010-11, copy of pass book is placed also on record. Considering the fact the Ld.NFAC/CIT(A) has dismissed all the appeals in limine ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 9 without discussion the merit of the case. The order passed by Ld.NFAC/CIT(A) is not as per the mandate of section 250(6) of the Act. Section 250(6) of the Act mandates that the Ld. CIT(A) while deciding the appeal is required to pass order on points of determination (grounds of appeals), decision therein on and reasons for such decision. Considering the fact that assessee claims the impugned bank account was not in existence during AY 2010-11 and that the Ld. NFAC/CIT(A) has not passed the order on merit. We restore the appeal in quantum assessment to the file of Ld.NFAC/CIT(A) to decide all the grounds of appeals afresh on merit in accordance with law, in a speaking order as per the mandate of section 250(6) of the Act. Needless to say, Ld. NFAC/CIT(A) before passing the order has grant reasonable opportunity of hearing to assessee and assessee is also directed to be more vigilant and not to seek any adjournment without valid reasons and to make proper compliance notice issue by Ld.NFAC/CIT(A) as and when called for. Ld. NFAC/CIT(A) is also given liberty to call remand report if so desire. ITA Nos.205,206, 212-214/SRT/2021 (A.Y10-11) Pankajkumar S Parmar 10 11. We note that all other appeals of assessee with regards to various penalties were dismissed in limine by Ld.NFAC/CIT(A) in absence of assessee in ex parte proceedings. Therefore all remaining four appeals are also restored back to the file of Ld.NFAC/CIT(A) for adjudicating all the appeals of assessee afresh after considering the explanation of the of the assessee. The assessee is also directed with our observation hereinabove. 12. In the result, five appeals of the assessee are allowed for statistical purposes. A copy of the instant common order be placed in the respective case file(s). Order pronounced in the open court on28/02/2022 at the time of hearing in virtual Court. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 28/02/2022 Dkp. Out Sourcing P.S Copy to: 1. Appellant- 2. Respondent- 3. CIT(A)-Surat 4. CIT 5. DR 6. Guard File True copy/ By order // True Copy // Assistant Registrar, ITAT, Surat